Northern’s ExposureLegislating by Faith, Time for a Policy Change
By Yvonne Lapp Cryns

I. Introduction

In 1633, Galileo Galilei was convicted of heresy by the Inquisition for promoting Copernican theories.1 Specifically, he was convicted2 of writing and teaching that the sun was the center of the universe, in contradiction to the Catholic Church’s doctrine and "accepted understanding of the Holy Scriptures,"3 that the earth was the center of the universe. The Church’s policy, based on faith, could not be challenged.4

Since 1979, Illinois Legislators have conducted themselves like the Ecclesiastical authorities of the Middle Ages and made policy decisions based on faith rather than fact in legislation regarding traditional (non-medical) midwifery assistance for childbearing women.5 Midwifery is assisting a woman with her birth.6 Each time a midwifery licensure bill came before them, the legislators claimed midwives were not as safe as medical doctors and nurses.7 This belief is erroneous, however, and has never been proved true.8 Nevertheless, Illinois legislators, the executive branch and judiciary cling to this faulty belief system9 to perpetuate an inferior10 and expensive health policy for mother11 and babies,12 while ignoring statistics and studies demonstrating midwifery safety.13

II. History of Midwifery

Since the earliest times, midwives were with women to help them with birth. "The history of maternity care is the history of midwifery."14 The Bible favorably describes the midwives Shiphrah and Puah, who defied the king of Egypt by permitting newborn Israelite males to live, instead of killing them as the king desired.15

While the statistics of most historic midwives no longer exist, those of Frisian midwife Catharina Schrader, who lived during the seventeenth and eighteenth centuries, were recorded and preserved.16 Her infant birth statistics17 were superior to those of physician-attended hospital births in the United States up until 1945, two hundred years later.18

Midwives in colonial America were considered experts in childbirth.19 During the eighteenth century, as medicine began organizing, physicians began attending births.20 The popularity of these doctors was due to the perceived prestige of having a male birth attendant and the use of male doctors for birth spread through the upper and middle classes.21 However, the public’s acceptance of physicians at birth was due to political and economic reasons rather than their scientific superiority.22

As medical education developed in the early twentieth century, and medical schools needed patients for student clinical experience,23 midwives were perceived as competition.24 This led to regulation,25 persecution and prosecution26 of midwives and public propaganda to discredit midwives and frame childbirth as a dangerous event needing physician intervention.27

The physician-sponsored anti-midwife campaign condemned midwives as "dirty" 28 and "a relic of barbarism."29 Midwife use was common among blacks and former slaves and the campaign played on racial prejudice referring to midwives as "filthy and ignorant and not far removed from the jungles of Africa."30 The physicians also preyed upon the public’s bias against the European immigrants and the growing fear of communism in proclaiming midwives "un-American."31

Yet, the facts pointed to midwives’ superiority.32 The White House Conference on Child Health and Protection, in 1933, issued reports that concluded that the "record of physicians was not equal to that of midwives."33 In the 1920’s, under the Sheppard-Towner Act, midwifery-training programs were funded.34 This Act provided health education and was "successful in lowering infant and mother’s childbirth mortality, and in improving the health and welfare of children and their mothers."35 Groups, such as the Women’s Patriot organization, the Catholic Church and other conservative forces, led by the AMA, opposed the Act and were successful in its repeal six years later.36

III. Illinois Legislative History on Midwifery

Illinois’ history is rich with midwifery. In the late nineteenth century, Illinois kept a registry of trained midwives that included over 700 professionals.37 A few years later, in 1887, licensure was offered to physicians and midwives;38 subsequently, a separate midwifery licensure was required of physicians who wished to practice midwifery.39 "Licensing has always existed…to protect the interests of the practitioners, not the consumers."40 In 1963, the legislature repealed the Midwifery Act and stopped issuing licenses.41 No evidence could be found that midwives were dangerous;42 rather, licensure decisions were made based on legislators’ faith in the medical profession’s claims of superiority without proof.43

In the years since the repeal of midwifery licensure, women have continued to desire the assistance of traditional midwives at their births.44 Although many attempts at licensure were made, none of the bills has succeeded at moving beyond a committee.45 During committee hearings on pending midwifery bills, those Legislators opposed to midwifery raise the issue of safety.46 Primary opposition has come from the Illinois State Medical Society,47 an organization that represents the interests of physicians.48 Additionally, nurse-midwives, another competitor of traditional midwives, oppose licensure, also based on unverified claims that midwives provide less safe care.49 Those legislators who vote in opposition to midwifery licensure bills have never demanded proof that physicians and nurses provide safer births.50

Legislators can readily request statistical and other information from the various state agencies and departments.51 Although the Department of Professional Regulation, DPR, has repeatedly opposed midwifery regulation, even when the bill bypassed DPR and established regulation through the Illinois Department of Public Health, IDPH, neither DPR nor IDPH has provided statistical information demonstrating traditional midwives are less safe than doctors and nurses.52 Although IDPH possesses the specific statistical information that shows Illinois traditional midwives are at least as safe as the medical providers, IDPH has not volunteered this information.53 Additionally, the American Public Health Association encourages the use of non-nurse midwives.54

With each midwifery bill, Illinois legislators receive communications from midwifery advocates and organizations citing sources documenting the safety of traditional midwifery care and home birth.55 For example, citations from a recent handout included supportive studies from the Journal of the American Medical Association,56 the Lancet,57 the American Journal of Public Health,58 Contemporary Pediatrics,59 Journal of Emergency Medical Services60 and a law journal.61 Illinois legislators have reacted like the Ecclesiastical Church in Galileo’s time by shunning scientific evidence that contradicts their belief regarding the safety of midwifery. However, unlike the Medieval Church, Illinois legislators of the twenty-first century are surrounded by studies, research and statistics and many experts who are qualified to explain scientific findings, including evidence-based practice.62

For example, the Illinois Department of Public Health, IDPH, collects statistics on births and deaths in Illinois.63 This information is available to legislators and the public.64 In regard to childbirth, IDPH collects birth data from birth certificates that are mandated by law and matches them to infant deaths to determine the newborn mortality statistics.65 For the years 1990 through 1997, IDPH statistics comparing the number of births attended by physicians and midwives and the outcomes of those births showed that for each year, the traditional midwives had better birth outcomes than physicians.66 In fact, the home birth midwives had an infant death rate less than half that of the physicians,67 in spite of physicians’ claims of "extensive training" rendering them more capable ofrecognizing and treating emergencies.68

However, more typical of the information that catches legislators’ attention is the comment published in 1994 by the Illinois State Medical Society president Dr. Arthur Traugott: "When a pregnant woman sees a physician, she’s buying an insurance policy. . . She doesn’t want anything to go wrong." 69 Yet, in 1994, 24 women died while under the care of Illinois physicians due to childbirth-related complications70 and 1,711 babies died following birth.71 According to the U.S. Department of Health and Human Services, maternal deaths are frequently misclassified so that the actual number of mothers who die is estimated to be 1.3 to 3 times greater.72

IV. Evidence-Based Practice

Evidence-based practice refers to evaluations of professional conduct that have met scientific scrutiny and are found to be effective, safe and beneficial.73 When making decisions about health care for childbearing women, referring to conclusions from evidence-based scientific studies would lead legislators to information about the true risks or benefits of various types of care and procedures and enable Legislators to make informed decisions about effective medical care and treatments. Instead of benefiting from this growing body of scientific evidence to guide their decision-making, Illinois legislators act on faith, clinging to invalid beliefs based on years of propaganda74 offered by physicians and medical societies that contribute significantly to their campaign funds.75

The effect of this medical faith-based legislating is a diminished standard of care for women and babies in Illinois. In 1979, a European epidemiologist pointed out that of all the medical specialties, obstetrics had "the worst record of basing its practice on sound research."76 Subsequent epidemiologists studied research and other data from 1950 onward and synthesized the data, using methods to diminish bias and random error.77 They concluded that certain routine procedures are harmful without any benefit to mother or baby.78 Some of these procedures with great potential for harm but no reward include elective delivery when a woman’s water breaks and the baby is premature,79 flat on the back position for pushing, and liberal use of episiotomy.80 Other medical routines that appear to be void of any benefit include IV’s, arbitrary limit to how long a woman can push during the second stage, and routine suctioning of newborns.81

Medical routines at the other extreme, those with clear benefit or likely to be beneficial, were also specified by the researchers in drawing conclusions from their extensive study.82 Included in this category is continuity of care for childbearing women, respect for the woman’s choice of place of birth and the companions she wants with her during labor and delivery, encouragement of a trial of labor after a previous cesarean section, and the right to "midwifery care for women with no serious risk factors."83 Illinois women and their babies cannot legally experience the proven beneficial effects of this type of care, however, because Illinois legislators choose to ignore the results of evidence-based studies and rely on medical counsel when given the opportunity to regulate non-medical midwifery.84

In 1992, State Representative Zeke Giorgi sponsored a resolution that would have set up the Department of Public Health to chair an advisory committee on midwifery to develop an educational program that would lead to licensure.85 The measure failed by six votes.86 Rep. Giorgi stated to the House, "I’d like to thank the 65 people that had the courage to stand up against the Medical Society. They are outstanding Americans."87

Legislators may believe they are acting to "protect public health, safety and welfare" when suppressing midwifery legislation;88 however, traditional midwifery care is equally safe or safer,89and these enactments perpetuate a fraud on the public by communicating the erroneous belief that birth is inherently dangerous and medical care is safest.90 During the most recent committee hearing on midwifery legislation, Rep. Elizabeth Coulson raised the necessity of malpractice or liability insurance for non-nurse midwives, in case something goes wrong.91 Ironically, no other medical profession in Illinois is mandated to carry malpractice insurance.92 The implication of raising the question of liability insurance for midwives prior to enacting licensure is that the profession is unsafe.

The DPR has taken the lead in extending the Legislator’s belief that birth is safer with medical personnel but unsafe with midwives, in its myopic targeting of traditional midwives for litigation.93 While ignoring consumer complaints about dangerous and possibly criminal acts by physicians and nurses,94 DPR, has led an all-out effort to eradicate midwives.95 For example, DPR failed to investigate an obstetrician when his patient bleed to death following a cesarean section, allegedly because he refused to acknowledge her desperate condition due to his prejudice against the Asian anesthesiologist.96 On the other hand, DPR set up a sting operation using a female investigator to misrepresent herself on the telephone as a pregnant woman seeking the services of a homebirth midwife.97 Based on the conversations and literature the midwives sent her, four traditional midwives were issued cease and desist orders for practicing medicine without a license in that they assist with natural childbirth and well woman care.98 There were no consumer complaints.99

A recent midwife case before the Illinois Supreme Court concluded with the Court holding that Legislators, intent on protecting the health, safety and welfare of citizens, intended that only licensed nurses provide health education, patient advocacy, health promotion, health maintenance or health restoration, including CPR!100 This interpretation of the Nursing Act, has been selectively enforced against traditional midwives, while public school health teachers, park district lifeguards, Red Cross instructors, exercise leaders, Le Leche League leaders, coaches and others engage in the prohibited acts without DPR prosecution.101

V. Conclusion

Instead of perpetuating the medical profession’s prejudice against traditional midwives by adhering to medicine’s unsubstantiated claims of superiority, Illinois Legislators must demand scientific proof that medical care and interventions produce better outcomes for all women and babies. Because no valid study to date has concluded that medical care is always the safest care for all women,102 and many studies have demonstrated that midwives are as safe or safer than medical providers,103 Illinois Legislators must stop placing legal barriers in the paths of women seeking non-medical assistance for childbirth in order to safeguard their health. In leaving behind their unquestioning belief in medical propaganda and instead challenging undocumented "facts," Legislators will protect the health, safety and welfare of Illinois citizens. The people of this state deserve nothing less.

7 E.g., Telephone interview with Pat Cole, Editor, Illinois Families for Midwifery Newsletter (Feb. 7, 2005) (recalling the Illinois committee hearings she attended since 1993 where legislators would suggest that midwives are less safe than physicians in hospitals).

8 Faith Gibson, The Official Plan to Eliminate the Midwife 1899-1999, in 290 liberty for Women (Wendy McElroy ed., 2002).

9 E.g., Telephone interview with Alicia Puckett (Feb. 11, 2005)(recalling State Representative Rosemary Mulligan’s anecdotal tales during the 2005 hearing in the Regulation and Registration committee on H.B. 645 of how a birthing woman’s life and newborn’s life was saved because of medical care and that less than medical care was unsafe); Memorandum from Bruce Paton, Legislative Liason for the Illinois Department of Professional Regulation, IDPR, to Mark Boozell, Director of Legislation for IDPR (Mar. 12, 1993) (copy on file with author) (expressing IDPR’s position toward HB 929, a midwifery licensure bill, that non-medical licensed midwives "could pose a threat to the public health, safety and welfare"); Illinois ex rel. Sherman v. Cryns, 786 N.E.2d 139, 160 (opining that the intent of the General Assembly in its enactment of the broad-reaching Nursing and Advanced Practice Nursing Act in 1998 was to protect the pubic from less safe practitioners, such as midwives).

11 Ill. Cost Care Containment Council, Guide to Deliveries in Ill. Hospitals 2000 9 (2001) (noting that the average cost of hospitalization.for giving birth in Illinois in 2000 was $6,411).

12 March of Dimes, Perinatal Profiles: Statistics for Monitoring State Maternal and Infant Health, Illinois 2003 Edition (Jan. 2003) (publishing statistics from the Illinois Department of Public Health showing that in an average week, 30 babies die in Illinois who were delivered in a hospital attended by physicians and nurses). See Illinois’ safety record in regard to birth outcomes compared to the rest of the nation is dismal—43 states have safer births including states that permit non-nurse midwifery. Id. at 5. E.g., Centers for Disease Control and Prevention, supra note 10, at 495 (estimating that over 900 American women die because of pregnancy complications each year).

13 See Illinois Center for Health Statistics, Infant Deaths to Birth Cohorts, by Type of Attendant, Illinois, 1990-1998 [hereinafter Infant Deaths to Birth Cohorts] (copy on file with author) (showing that statistically in Illinois physicians had twice the newborn death rate of non-nurse midwives).

14 Barbara Katz Rothman, In Labor: Women and Power in the Birthplace 29 (1982).

18 Id. at 36 (noting that newborn death rate in Europe and the United States before 1945 was between 40 and 50 infant deaths per 1,000, and midwife Schrader’s was about 54 infant deaths per thousand births).

19 Judy Barrett Litoff, An Enduring Tradition: American midwives in the Twentieth Century, in The American Midwife Debate: A Sourcebook on Its Modern Origins 3 (Judy Barrett Litoff ed., 1986).

24 See Joseph B. De Lee, Progress Toward Ideal Obstetrics, in The American Midwife Debate: A Sourcebook on Its Modern Origins 102-09 (Judy Barrett Litoff ed., 1986)(including a specific quote from the Illinois Medical Journal where members of the Illinois Medical Society opined that the licensed midwives in Illinois should have the same educational requirements as physicians.

31 Id.; See Stanley K. Schultz, American History 102, at http://us.history.wisc.edu/hist102/lectures/lecture16.html (explaining under "Red Scare" how early twentieth century Americans developed a fear of anything foreign, including what became known as communism after World War I) (last visited Mar. 21, 2005).

32 Litoff, supra note 19, at 5-6 (noting that physician-attended birth had not resulted in safer births, rather the use of "scientific" obstetrics had produced new problems with statistical outcomes worse than midwives).

33 Gena Corea, The Hidden Malpractice 186 (1977); Dorothy Mendenhall, M.D., the author of the Children’s Bureau report, went to Denmark to study their method of childbirth because Denmark had one of the best maternal and infant survival rates, whereas the United States had the worst maternal death rate of any industrialized nation (save Spain and Switzerland). Each year 16,000 American women died from complications of childbirth that were preventable. She discovered that midwives attended eighty-five percent of all births in Denmark and their avoidance of interventions and drugs made the difference. Id. at 187.

34 Litoff, supra note 19, at 9.

35 Susan L. Waysdorf, Fighting for Their Lives: Women, Poverty, and the Historical Role of United States Law in Shaping Access to Women’s Health Care, 84 Ky. L.J. 745, 774-80 (1995-1996).

36 Id. at 780. "The AMA-led campaign to defeat the law also reflected the AMA’s growing advocacy of private, profit-driven medicine, in partnership with the new implementation of the private health insurance industry." Id. at 786-87.

37 State Bd. of Health of Ill., Official Register of Physicians and Midwives (1884).

38 Illinois General Assembly’s Citizens Council on Women, Fact Sheet, Mar. 31, 1994 at 1 (copy on file with author).

42 I was unable to locate communications between legislators and the Public Health Department or discussions in committees or on the floor regarding statistics or studies proving superior safety of nurses and physicians.

43 E.g., Interview with Alicia Puckett, supra note 9 (recalling Rep. Rosemary Mulligan’s anecdote during the committee hearing in 2005, when she expressed her belief that women belong in the hospital to give birth because medical care can save them).

44 E.g., Ill. Dept. of Public Health, Annual Birth by Residence (1989) (showing over 1500 women gave birth at home and over 500 did so without a physician).

46 E.g., Interview with Alicia Puckett, supra note 9 (recalling Rep. Rosemary Mulligan’s anecdote during the committee hearing in 2005, about how a birthing woman and her baby nearly died but was saved because of medical care and her presence in the hospital).

50 E.g., Interview with Alicia Puckett, supra note 9 (recalling Rep. Rosemary Mulligan’s anecdote indicating her belief in the medical model of care, yet did not request information about the safety of medical care or the safety of midwifery).

51 See State of Illinois Telephone Directory (2003-2004) (listing contact information for departments and agencies, as well as state employees by title).

52 See e.g., Memorandum from Bruce Paton, supra note 9 (claiming non-nurse midwives are underqualified and that could lead to dangers for the public’s safety, yet does not include any information about factual data nor does it request any).

53 E.g., Infant Deaths to Birth Cohorts, supra note 13 (showing results of statistics collected in Illinois from birth and death certificates that traditional midwives in Illinois during that period had an infant death rate at least half that of physicians and comparable to that of nurse-midwives).

55 E.g., Handout from Illinois Council of Certified Professional Midwives and Illinois Families for Midwifery to Legislators (2000) (on file with author) (listing nine medical studies that support the safety of midwives).

57 World Health Organization, Appropriate Technology for Birth, 2 The Lancet 436-37 (Aug. 24, 1985) (recommending the training and use of professional midwives (not nurses) to improve maternity services).

58 Mark Durand, The Safety of Home Birth: The Farm Study, 82 Am. J. Public Health 450-52 (Mar. 1992) (basing research on over 1700 home births attended by direct-entry midwives, concluded that midwife-attended home births "can be accomplished as safely as, and with less intervention than physician-attended hospital deliveries"). Id. at 452.

61 Suzanne Hope Suarez, Midwifery is not the Practice of Medicine, 5 Yale J.L. & Feminism 315 (1993) (concluding midwifery is a safe, separate, independent profession based on the Midwifery Model of Care and not on the Medical Model).

62 See State of Illinois Telephone Directory, supra

note 51 (containing phone numbers, names and agencies of state sources for statistics and data).

93 See Brochure, Illinois Families for Midwifery, Illinois’ Shameful History of Midwifery (August 1997) (copy on file with author) (noting four traditional midwives were issued Cease and Desist orders for the practice of medicine following an undercover investigation by DPR in 1997).

94 Let Sleepy Docs Lie (Down), Chi. Trib., Nov. 26, 2004, § 1 at 18 ("Medical mistakes kill. A 1999 Institute of Medicine report suggested medical errors led to the deaths of an estimated 44,000 to 98,000 hospitalized U.S. patients every year."); James Fuller, Doctors Who Err Still Get Clean Bill of Health, Chi. Sun-Times, June 24, 2001, § A, at 7A. See also Doctors Mistakes You’ll Never Know, Chi. Sun-Times, June 24, 2001, § A, at 1, 6A-7A (reporting on Illinois physicians who have maimed and caused women’s deaths, yet have no blemish on their medical license and continue to practice).

95 See Interview with Janet Caliendo, observer at Supreme Court hearing, in Springfield, Ill. (Nov. 20, 2002) (recalling DPR attorney’s comments to the Court that assisting a woman at birth is nursing and was intended to be covered in the Nursing and Advanced Practice Nursing Act when legislator’s passed it, although traditional midwifery was never mentioned during passage of the Act).

100 Cryns, 786 N.E.2d at 155-56 (holding that the "‘promotion, maintenance, and restoration of health’ and ‘counseling, patient education, health education, and patient advocacy’" among other activities, can only be performed by those licensed as nurses, and that performance of CPR is confined to licensed nurses because it "constituted ‘corrective measures’ to improve" health).

101 Ill. Dept. of Financial and Prof’l Reg., at http://www.idfpr.com (showing monthly reports, under news and publications, of those who were issued cease and desist orders and other administrative sanctions) (last visited March 21, 2005).

102 Gibson, supra note 8, at 292;

103 E.g., Judith Pence Rooks, Midwifery and childbirth in America 350 (1997) (noting that every published study of a single out-of-hospital birth practice has had equivalent or superior outcomes compared to hospital birth).

Yvonne Lapp Cryns is completing her second year as a law student at Northern Illinois University. She is a member of the Northern Illinois University Law Review, and next year will be the Research Editor. She is an R.N. in Wisconsin. She and her husband have seven children, and six of them were born at home in Illinois.